Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the defendant Williams, dated March 16, 2016, and supporting papers; (2) Notice of Cross-Motion by the plaintiff, dated April 1, 2016, and supporting papers; (3) Affirmation in Opposition by the defendant Williams, dated April 20, 2016, and supporting papers; (4) Memorandum of Law by the defendant Williams, dated March 16, 2016; (5) Affirmation in Reply by the plaintiff, dated April 22, 2016, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. #001) by the non-criminal defendant vehicle owner, Gregory W. Williams, which seeks an order, inter alia, dismissing the plaintiff's complaint pursuant to CPLR 3211, is hereby denied for failure to make the requisite showing of entitlement to such relief; and it is further

ORDERED that the cross-motion (seq. #002) by the plaintiff/claiming authority, Dennis M. Brown, County Attorney for the County of Suffolk ("the County"), which seeks an order granting summary judgment pursuant to CPLR 3212 against the non-criminal defendant, Gregory W. Williams, and forfeiture of Mr. Williams's 2012 Dodge, VIN # 1C6RD7GP5CS102806, pursuant to Suffolk County Code ("SCC") Chapter 818, is hereby denied; and it is further

ORDERED that upon the Court's searching of the record pursuant to CPLR 3212(b), summary judgment is hereby granted in favor of defendant, Gregory W. Williams, and the complaint is hereby dismissed in its entirety; and it is further

ORDERED that the County shall promptly make the subject vehicle, seized by the County on or about October 8, 2014, available for release to defendant Gregory W. Williams at the current place of storage (without any charge for towing, maintenance or storage fees), as further set forth herein; and it is further

ORDERED that the County shall promptly serve Notice via Certified Mail (return receipt requested) and First Class Mail upon counsel for Mr. Williams, that Mr. Williams has the right to take possession of the subject vehicle at the current place of storage (without any charge for towing, maintenance or storage fees), and that in the event of his failure to take possession of the vehicle within 60 days after such notice, the vehicle will be subject to forfeiture upon application by order to show cause by the County for an order granting forfeiture on grounds of the noncriminal defendant's failure to take timely possession of the vehicle; and it is further

ORDERED that counsel for defendant Williams shall promptly serve a copy of this Order by First Class Mail upon counsel for the County, and upon all other parties (or their attorneys if represented by counsel), and shall promptly thereafter file the affidavit(s) of such service with the Suffolk County Clerk.

In this civil forfeiture action, the County alleges that on August 3, 2015, the criminal nonparty driver, Sean B. Williams, was arrested and charged with unlawful fleeing of a police officer and aggravated unlicensed operation of a vehicle in violation of VTL §511(2)(A)(4) and Penal Law 270.25. At the time of the arrest, Sean was operating the vehicle that is the subject of this action, a 2012 Dodge, VIN # 1C6RD7GP5CS102806, which was registered and titled to his father, the noncriminal defendant, Gregory W. Williams. The subject vehicle was seized by the County pursuant to SCC Chapter 818 as a purported instrumentality of Sean's crime. By summons and complaint filed October 28, 2015, the County seeks a judgment directing forfeiture of Mr. Williams's vehicle and permitting the County to dispose of the vehicle in accordance with Chapter 818 of the Code. Issue was joined by service of Mr. Williams's January 22, 2016 verified answer. Mr. Williams now moves for dismissal of the County's complaint pursuant to CPLR 3211(a)(7) and (10), while the County cross-moves for summary judgment pursuant to CPLR 3212.

Generally, on a CPLR 3211 motion to dismiss, the court will accept the facts alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Nonnon v City of New York, 9 NY3d 825, 842 NYS2d 756 [2007]; Sokol v Leader, 74 AD3d 1180, 904 NYS2d 153 [2d Dept 2010]). Pursuant to CPLR §3211(a), a party may move for judgment dismissing a cause of action on the ground that "(7) the pleading fails to state a cause of action; or . . . (10) the court should not proceed in the absence of a person who should be a party." The defendant's motion fails to establish defendant's entitlement to dismissal under CPLR 3211(a)(7) or (10). Therefore defendant's motion to dismiss is denied.

With regard to the granting of summary judgment, CPLR 3212(b) provides, in relevant part, that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The statute also states that "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion." In this regard, a court may search the record and grant summary judgment in favor of nonmoving party as to a cause of action or issue that is the subject of motions before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 654 NYS2d 335 [1996]; Theo v Vasquez, 136 AD3d 795, 26 NYS3d 85 [2d Dept 2016]; Mirjani v DeVito, 135 AD3d 616, 24 NYS3d 263 [2d Dept 2016]; Licalzi v Wells Fargo Bank, N.A., 125 AD3d 942, 5 NYS3d 158 [2d Dept 2015]; Matter of Joy Builders, Inc. v Conklin, 96 AD3d 939, 946 NYS2d 497 [2d Dept 2012]; Netjets, Inc. v Signature Flight Support, Inc., 43 AD3d 1014, 842 NYS2d 492 [2d Dept 2007]; Linkowski v City of New York, 33 AD3d 971, 824 NYS2d 109 [2d Dept 2006]; Federal Natl. Mtge. Assn. v Katz, 33 AD3d 755, [*2]822 NYS2d 759 [2d Dept 2006]; Murray v Murray, 28 AD3d 624, 812 NYS2d 378 [2d Dept 2006]; Goldstein v County of Suffolk, 300 AD2d 441, 751 NYS2d 549 [2d Dept 2002]).

In seeking summary judgment, the County contends that since Sean Williams had prior criminal convictions, including driving under the influence, and since Sean was driving Mr. Williams's vehicle at the time Sean was arrested for the current offense, the vehicle should be forfeited pursuant to Chapter 818 of the Suffolk County Code. SCC §818-40(C) authorizes the County to commence a civil action against a noncriminal defendant to recover the property which constitutes the instrumentality of an offense. SCC §818-38 defines "instrumentality of an offense" as "a vehicle, the use of which contributed directly and materially to the commission of an offense as defined in this article."

In support of its contentions, the County cites SCC §818-40(C), which states, in relevant part, that "a noncriminal defendant whose vehicle was an instrumentality used and operated by a person who is unlicensed or is driving with a suspended or revoked license, shall be presumed to know that the instrumentality of an offense was or would be used in a manner that would directly and materially contribute to the commission of an offense . . . A noncriminal defendant who knows, or should know, of prior illegal use by a criminal defendant of an instrumentality or other property of a like nature or kind shall be presumed to know that the instrumentality of an offense was or would be used in a manner that would directly and materially contribute to the commission of a subsequent crime . . ." (SCC §818-40[C]).

Conspicuously absent from the County's argument, however, is the section of the Code that relates to proof necessary for the County to prevail in a forfeiture action against a noncriminal defendant vehicle owner. For example, SCC §818-40(E) expressly states: "No property shall be forfeited under this article unless the [County] produces clear and convincing evidence that the noncriminal defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant" (SCC §818-40[E]) (emphasis added). Notwithstanding his son's prior convictions, the County has failed to submit any evidence (much less clear and convincing evidence) that noncriminal defendant Gregory W. Williams "engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal [nonparty] defendant" (see SCC §818-40[E]). Therefore, the County has failed to make a prima facie showing of entitlement to summary judgment as a matter of law under SCC Chapter 818. Accordingly, summary judgment and forfeiture of Mr. Williams's vehicle in favor of the County must be denied.

In his affidavit in opposition to the County's cross-motion, Mr. Williams unequivocally states:

I would not, and did not, give permission for my son, Sean B. Williams, to drive my truck on August 2 and 3, 2015 or at any other time. I would have never given him permission verbally or otherwise, and I do not recall ever giving him permission in any manner, to drive my truck. It is an expensive vehicle and I needed it for my boat. He was to use my [*3]truck, and the trailer that I also purchased for the landscaping business for the storage of lawn equipment, for performing landscaping work, and for hauling the lawn equipment from job to job in the capacity of passenger, not in the capacity of driver.

Following my son's [prior] conviction for driving under the influence when operating my wife's vehicle, my wife and I would hide the keys so my son could not drive our vehicles. I severely scolded my son not to drive our vehicles.

I was unaware that my son had taken the keys to my truck, drove it, and committed the offenses for which he was charged on August 2 and 3, 2015 . . .

Based upon these sworn statements, upon searching the record pursuant to CPLR 3212 (b), and upon the defendant's request in his notice of motion for the court to grant "such other and further relief as this Court deems just and proper," summary judgment is hereby granted in favor of Gregory W. Williams. Accordingly, the County's complaint is dismissed.

Concerning the status of Mr. Williams's vehicle, it has remained in possession of the County since it was seized by the County following his son's arrest. Although other sections of SCC Chapter 818 (i.e., §§818-15[I]; 818-24[I]; 818-40[I]) contain provisions which specifically require immediate return of a noncriminal defendant's vehicle when that defendant prevails under certain other circumstances, Chapter 818 is silent as to return of a defendant's vehicle where, as here, the County fails in the first instance to meet its burden of showing "clear and convincing evidence that the noncriminal defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant" (SCC §818-40[E]) (emphasis added).

The Suffolk County Code authorizes the Court to exercise its discretion, in the interests of justice, in determining the forfeiture liability of a noncriminal defendant. In this regard, SCC §818-42[B] states: "Nothing contained in this article shall require a court to order a forfeiture when it determines, in its discretion, that it is in the interests of justice not to do so." Given the lack of provisions for return of a defendant's vehicle when the County fails to meet its self-imposed burden of proof, and given the "interests of justice" discretion afforded to the Court in the Code, the Court hereby directs that the County shall promptly serve notice upon Mr. Williams's counsel, via Certified Mail (return receipt requested) and First Class Mail, that Mr. Williams has the right to take possession of the subject vehicle at the current place of storage (without any charges for towing, maintenance or storage fees), and that in the event of failure to take possession of the vehicle within 60 days after such notice, the vehicle will be subject to forfeiture upon application by order to show cause by the County for an order granting forfeiture on grounds of the noncriminal defendant's failure to take timely possession of the subject vehicle.

Since the County has failed to satisfy the burden of proof required prior to issuance of an order of forfeiture pursuant to SCC §818-40(E), Mr. Williams shall not be required to pay any seizure-related charges or fees as a condition of release of the vehicle to him. Inasmuch as it would be unjust to grant forfeiture against Mr. Williams as the noncriminal defendant in this [*4]case, it would be equally unjust to require him, as a noncriminal defendant, to pay any charges and fees related to the County's seizure of his vehicle under the circumstances presented.

In the event Mr. Williams fails to take possession of the subject vehicle within 60 days after notice by the County of his right to do so, then the County shall promptly submit an application by order to show cause for an order granting forfeiture on the basis of Mr. Williams's failure to timely take possession of the subject vehicle. Such order to show cause shall include as exhibits a copy of the affidavit of service of this Order and a copy of the notice served upon the noncriminal defendant regarding his right to take possession of the vehicle.

Unless expressly granted herein, all other requested relief is denied.

This constitutes the Order and Judgment of the Court.